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county for trial, he may follow the case into the other county and try it there.'

A judge appointed pro tempore, by the regular judge, can not appoint another to act as judge in his stead.2

Court can not legally be held by a special judge where there is but one regular judge of the district and he is holding a regular term of court at the time. This has been held where the regular and special judges were holding courts in different counties in the district.3

A special judge elected to try a cause, and whose authority terminates with the termination of the action, has authority to re-try the same, if reversed on appeal and a new trial ordered. And, where such special judge is selected because of the disqualification of the regular judge, his authority continues until the action is terminated, al

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1 State v. Higgerson, 19 S. W. Rep. 624.

Cargar v. Fee, 119 Ind. 536; 21 N. E. Rep. 1080.

3" The commencement of a term is a legislative command to the elected judge to be present and discharge the judicial duties devolving upon him in that county. It operates as a suspension of his duties in all other counties in his district, and suspends, or closes, the terms in those counties. The legislature provides for terms, in order to secure his personal attention to the litigation in each county. It prescribes the commencement of each term, leaving the time of closing to the discretion of the judge acting upon the necessities of business. It does not leave the commencement to his discretion, because it intends that each county shall have the benefit of his presence and labors at a certain and known time. The people of the entire district elect the judge. Each county is entitled to the benefit of his learning and experience. And the legislature by terms names the time of his attendance. Impliedly, thereby commanding him to attend in one county, it equally commands him to leave all the others. The case of Grable v. The State, 2 G. Greene, 559, is strongly in point. Under similar provisions, the supreme court of Iowa there held that the term in one county was closed on the day the term was by law to commence in another. It says: 'From the constitution of our judicial system, it is apparent that the court can not be held in two counties in the same district on the same day, and by one and the same judge.' So we say here, there is but one district court and one district judge in a district. The officer is not to be duplicated, and, when a term commences in one county, the court every-where else in the district is closed, or suspended. A judge pro tem. is only a substitute, and never a duplicate. In re Millington, 24 Kan. 214, 224.

* State v. Sneed, 91 Mo. 552; 4 S. W. Rep. 411.

though, in the meantime, a regular judge, not disqualified, takes the bench. The cause may, in such case, be heard by either the regular or special judge. And his authority includes not only the trial of the particular action, but any litigation between the same parties growing out of that action; for example, an action to vacate the judgment therein and enjoin the levy of execution issued thereon.2

A special judge who refuses to act on the ground that the regular judge is not disqualified, when in fact he is disqualified, may be compelled by mandamus to proceed.3

62. JUDGES DISQUALIFIED BY INTEREST OR OTHERWISE.-A judge who is in all other respects competent may be wholly without authority to act in a particular cause or proceeding because of some disqualification affecting his right to preside in such cause or proceeding. This may arise from some personal interest he may have in the result of the action as a party, or as attorney or counsel for a party, or from other causes. It is the policy of the law to withhold from a judge all power or jurisdiction to act in any matter in which he has a personal interest, irrespective of the wishes or consent of the parties interested." But the kind or degree of interest that will disqualify can not be

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1 Noffzieger v. Reed, 98 Mo. 87; 11 S. W. Rep. 315.

Harris v. Musgrave, 72 Tex. 18; 9 S. W. Rep. 90.

Schultze v. McLeary, 73 Tex. 92; 11 S. W. Rep. 924.

Freeman on Judg., sec. 144.

Duncan v. McCall, 139 U. S. 449; 11 Sup. Ct. Rep. 573; Templeton v. Giddings, 12 S. W. Rep. 851; Oakley v. Aspinwall, 3 N. Y. 547; Heilbron v. Campbell, 23 Pac. Rep. 122; Cooley's Const. Lim., *pp. 410-413.

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'The provision of article 29 of our declaration of rights, that it is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit,' rests upon a principle so obviously just, and so necessary for the protection of the citizen against injustice, that no argument is necessary to sustain it, but it must be accepted as an elementary truth. The impartiality which it requires incapacitates one to act as a judge in a matter in which he has any pecuniary interest, or in which a near relative or connection is one of the parties. It applies to civil as well as criminal cases; and not only to judges of courts of law and equity and probate, but to special tribunals, and to persons authorized on a special occasion to decide between par

accurately defined. It must, however, be some direct interest that is personal to the judge and not such a general or public interest as affects all persons in the district or community contingently only and equally with him.'

It is provided in the statutes of some of the states that the general interest one has as a tax-payer of a city or county will not disqualify a judge in an action by or against such city or county. And this is the accepted doctrine of some of the cases independently of such statutory provisions. It must be a property, or pecuniary interest. So it is held that the bias or prejudice of the judge, or a desire on his part that one or the other of the parties shall succeed, is not sufficient to disqualify him. And it must

ties in respect to their rights. It existed under the common law from the earliest times." Hall v. Thayer, 105 Mass. 219; 7 Am. Rep. 513.

1 Sauls v. Freemen Co. Com'r, 24 Fla. 209; 4 Sou. Rep. 525; Commissioners, etc., v. Lytle, 3 Ohio, 290; Commonwealth v. Ryan, 5 Mass. 89; Inhabitants of Northampton v. Smith, 52 Mass. (11 Met.) 390; Peck v. Freeholders of Essex, 20 N. J. Law, 457.

2 Smith v. Faxon, 31 N. E. Rep. 687.

3 State v. Severance, 4 Atl. Rep. 560; State v. Craig, 80 Me. 85; 13 Atl. Rep. 129; Peck v. Freeholders of Essex, 20 N. J. Law, 457.

But see Peck v. Freeholders of Essex, 21 N. J. Law, 656, in which the same case just cited was reversed by the Court of Errors and Appeals and the doctrine declared that such an interest rendered the judge incompetent.

Sauls v. Freeman, 24 Fla. 209; 4 Sou. Rep. 525; Ex parte Harris, 7 Sou. Rep. 1; Taylor v. Williams, 26 Tex. 583; Inhabitants of Northampton v. Smith, 52 Mass. (11 Met.) 390.

"The interest meant by the statute is property interest. In Inhabitants of Northampton v. Smith, 11 Metc. 395, it is said that the interest must be a pecuniary or proprietary interest,— -a relation by which, as debtor or creditor, as heir or legatee, or otherwise, the judge will gain or lose something by the result of the proceedings,-in contradistinction to an interest of feeling or sympathy or bias that would disqualify a juror. See, also, Sjoberg v. Nordin, 26 Minn. 501, 5 N. W. Rep. 677. If the nature of the suit is such that no individual property interest of the judge or juror is involved in it, there can be no disqualification, as to either, on the ground of interest. Such is clearly the nature of a mandamus proceeding. It was not brought to enforce any individual property rights of any one, but to compel the commissioners to perform a public duty." Sauls v. Freeman, 24 Fla. 209; 4 Sou. Rep. 525, 528.

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Post, sec. 63; Sjorberg v. Nordin, 26 Minn. 501; 5 N. W. Rep. 677; Ex parte Harris, 7 Sou. Rep. 1; Taylor v. Williams, 26 Tex. 583.

be such an interest as will be affected, directly, by the determination of the action, and not incidentally or in an uncertain or remote degree.' But it must not be understood from this that some interest of the judge must be actually involved in the issues and will be directly affected. by the result. If his rights regarding the subject-matter of the pending action will be affected, or he may be placed in a more or less favorable situation, in litigation that may follow respecting the same subject-matter, he is disqualified.2

1 Webster v. Com'rs Wash. Co., 26 Minn. 220; 2 N. W. Rep. 697; North Bloomfield G. M. Co. v. Keyser, 58 Cal. 315; Inhabitants of Northampton v. Smith, 52 Mass. (11 Met.) 390.

2 "So, putting the matter in the most favorable light for the respondent, we have a case in which three parties are adversely claiming to be the owners of a certain tract of land, one of whom is a judge of the court, and the other two adverse litigants before him, asking him, by his judgment, to determine which of them is the owner of the land which he claims to own. Not only so, but he is asked to appoint a receiver to take possession of land which he claims to own, and account to him for its management. He is called upon by the application for a receiver, or may be, to determine what lands shall go into the hands of such receiver. As he claims a part of the land, and asserts that it is not within the larger tract in dispute, the temptation to exclude it in making his order will at once arise; and, if his land is to go into the hands of a receiver, it must be of some interest to him who shall become such receiver, and take charge of and manage the land. It seems to us that neither argument nor authority is necessary to show that a judge should be prohibited from sitting in a cause under such circumstances; but we cite Code Civil Pro., sec. 170; Mining Co. v. Keyser, 58 Cal. 315; Stockwell v. Board, 22 Mich. 341; Hall v. Thayer, 105 Mass. 219; Cottle's Appeal, 5 Pick. 482; Sigourney v. Sibley, 21 Pick. 101; Coffin v. Cottle, 9 Pick. 287; Gay v. Minot, 3 Cush. 352; Moses v. Julian, 45 N. H. 52; Oakley v. Aspinwall, 3 N. Y. 547.*

"It is contended that our statute only disqualifies a judge where he has a direct interest in the result of the suit, and that, as in this case a judgment for or against either of the parties, determining the controversy between them, could not bind the judge, or affect his title to the land claimed by him, he was not disqualified. But we can not give the statute this narrow construction. It should be the duty and desire of every judge to avoid the very appearance of bias, prejudice, or partiality; and to this end he should decline to sit, or, if he does not, should be prohibited from sitting, in any case in which his interest in the subject-matter of the action is such as would naturally influence him either one way or the other. We have shown how a judge might, and proba

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A mere interest in the question involved, there being no interest in the subject-matter of the action does not

bly would, be influenced to act in the appointment of a receiver. In the decision of the action on its merits, the temptation to decide in favor of one party or the other might be equally strong. It might become very important to him to have the land go to one of the claimants rather than the other. One might be friendly to him, and his claim, and the other not. With one a compromise might be easy, and with the other difficult. One might be much more inclined, and more able, pecuniarily or otherwise, than the other, to litigate his claim against him. And, aside from what might influence the judge under such circumstances, it appears to us to be unseemly for a judge to sit in an action involving the title, as between the litigants, to a subject-matter of which he claims to be the sole owner, and must in the end litigate as between himself and the litigant who succeeds to the property by his judgment." Heilbron v. Campbell, 23 Pac. Rep. 123; 24 Pac. Rep. 930.

"It is an ancient maxim, and one founded in the most obvious principles of natural right, that no man ought to be a judge in his own cause. That principle finds expression in our statute in these words: 'No justice, judge, or justice of the peace shall sit or act in any action or proceeding: 1. To which he is a party, or in which he is interested.' . . . (Sec. 170, Code Civ. Proc.) This provision should not receive a technical or strict construction, but rather one that is broad and liberal. 'The court ought not to be astute to discover,' said the Supreme Court of Michigan, in Stockwell v. The Township Board of White Lake, 22 Mich. 350, ‘refined and subtle distinctions to save a case from the operation of the maxim, when the principle it embodies bespeaks the propriety of its application. The immediate rights of litigants are not the only objects of the rule. A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance.' Undoubtedly the prohibition does not extend to cases where the interest is simply in some question or questions of law involved in the controversy, or when it is indirect and remote; and if the interest of Judge Keyser in the suit pending before him extends no further than that, it is clear that he is not disqualified to determine the cause. But we can not so regard his interest upon the facts as presented. The city of Marysville says in its complaint, that the defendants are causing the property of the city and that of its inhabitants great and irreparable damage by sending down the Yuba River vast quantities of tailings from their mines, thus polluting the waters of the river, filling up its channel, overflowing the adjacent lands, and depositing the debris on the lands of the city, and otherwise injuring it and its people. The defendants say, in their petition, that the respondent owns land adjoining those of the city, and similarly situated; that in precisely the same manner and to the same extent that the tailings sent down the Yuba River by them injure the lands of the city of Marysville and its inhabitants, they injure the lands of the

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